Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2018 (6) SA 598 (WCC)The Western Cape Division of the High Court in Cape Town handed down the judgment in the Women’s Legal Centre Trust case on 31 August 2018. It declared that the state is obliged to respect, protect, promote and fulfil the rights of the Constitution and that it is required to prepare, initiate, introduce, and enact legislation that recognises Muslim marriages and its consequences. The court held that the state is required to bring the legislation into operation. The High Court declared that the President and his Cabinet failed to fulfil their constitutional obligations and that their conduct was invalid.
The High Court directed that the President and his Cabinet together with Parliament have to rectify the failure within 24 months of the date of the order. The two year deadline comes to an end on 31 August 2020.
The High Court held that if the contemplated legislation is referred to the Constitutional Court (CC) by the President of South Africa, or if it is referred by members of the National Assembly, then the deadline would be suspended pending the final determination of the matter by the CC. However, the High Court further held that if the said legislation is not enacted within the time periods discussed above, a number of consequences will automatically come into effect (see para 252).
In its order, the High Court declared that ‘a union, validly concluded as a marriage in terms of Sharia law [hereafter referred to as an Islamic marriage] and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia law) be dissolved in accordance with the Divorce Act 70 of 1979 and all the provisions of that Act shall be applicable, provided that the provisions of s 7(3) shall apply to such a union regardless of when it was concluded’ para 252). These are possible consequences of enforcing this section of the High Court order.
In the event of a scenario where a Muslim couple is married only in terms of Islamic law, and an application is made by the wife to dissolve her marriage in terms of the Women’s Legal Centre Trust judgment based on the fact that her husband does not want to issue her with a divorce (talaq) in terms of Islamic law, there would be problematic consequences that would unfold in this regard. Two issues will now be looked at based on the above order –
In this article, the issues are discussed together.
The fact that the High Court order states that an Islamic marriage may be dissolved in terms of the Divorce Act 70 of 1979 ‘even after’ it has been dissolved in terms of Islamic law, brings about the perception that it is possible for the Islamic marriage to remain intact while the civil marriage (which in fact is non-existent) is capable of being dissolved by a court of law. This does not make any sense, as the question would then arise as to what exactly is being dissolved?
The situation should also be looked at in light of s 5A of the Divorce Act where it states that ‘[i]f it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court [that] the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed or the court may make any other order that it finds just.’
Does the High Court order mean that a judge no longer has the right to refuse to grant a divorce regarding Muslim couples in terms of this section? This does seem to be the case.
An argument could be made that the Islamic divorce would also dissolve as a result of the decree of divorce by the judge (whether a Muslim or non-Muslim judge) in terms of the Divorce Act. It should be noted that Islamic law generally requires that an Islamic divorce should be granted by a Muslim judge and in terms of Islamic law. However, the European Council for Fatwa and Research issued an Islamic ruling (fatwa) in Dublin on 7 May 2000 where it stated that this would be allowed for a non-Muslim judge to grant a divorce that would bring the Islamic marriage to an end in the event where the parties entered into marriage in terms of the law of the non-Muslim (or Muslim minority) country. The fatwa does not, however, apply to the scenario at hand where the parties are not married in terms of the law of the country (see resolution 3/5 of the European Council for Fatwa and Research at www.e-cfr.org for the full fatwa).
The fatwa does have an influence on how s 5A of the Divorce Act applies to South African Muslims. It should be noted that the most recent version of the Muslim Marriage Bill (2010 draft Bill proposing the regulation of Muslim marriages in South Africa) states that a judge may grant a decree of divorce where ‘discord between the spouses has undermined the objects of marriage, including the foundational values of mutual love, affection, companionship and understanding, with the result that the dissolution of the marriage is an option in the circumstances’ (see Draft Muslim Marriages Bill at https://pmg.org.za).
This provision is much like ss 3 and 4 of the Divorce Act, which deals, inter alia, with an irretrievable breakdown of a marriage as a ground for granting a divorce by a judge. The consequence of the divorce is now looked at as to how it would apply to the couple in the scenario above.
The High Court order states that the Islamic marriage may ‘be dissolved in accordance with the Divorce Act 70 of 1979 and all the provisions of that Act shall be applicable, provided that the provisions of s 7(3) shall apply to such a union regardless of when it was concluded’. This would also remain problematic if the section causes patrimonial consequences that are different to those applicable in terms of Islamic law. It should be noted that the default patrimonial consequences of an Islamic marriage are that the assets of the parties to the marriage are kept separate. This would be similar to the South African position in terms of a marriage out of community of property without the application of the accrual system. The Draft of the Muslim Marriages Bill states under s 8(1) that ‘[a] Muslim marriage to which this Act applies is deemed to be a marriage out of community of property excluding the accrual system, unless the proprietary consequences governing the marriage are regulated by mutual agreement of the spouses, in an antenuptial contract’. Section 7(3) of the Divorce Act states that a court may order ‘on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.’ It can be seen that s 7(3) of the Divorce Act empowers the court (on application) to determine what the departure from the default position should be, whereas s 8(1) of the Muslim Marriages Bill empowers the parties by way of mutual agreement to decide what the patrimonial consequences of the marriage would be on conclusion thereof. It is, therefore, possible that a judge would grant an order in terms of s 7(3) that is not necessarily compliant with Islamic law.
The above analysis has highlighted some of the problematic consequences that could unfold in the event where legislation is not enacted on or before 31 August 2020. I would, therefore, advise that couples married in terms of Islamic law only, should draft a contract explaining exactly what the consequences of the marriages would be. This could even be done by couples that are already married in terms of Islamic law. The above analysis has also shown why there is a dire need for legislation to be enacted that governs Muslim marriages and its consequences.
Dr Muneer Abduroaf LLD (UWC) is a Senior Lecturer at the University of the Western Cape in Cape Town.
This article was first published in De Rebus in 2020 (July) DR 33.
